Pretrial Procedure and Early Disposition of Case

Question 1

Summary Judgment

Answer 1

1. No genuine issue of material fact exists and moving party is entitled to judgment as a matter of law.
2. In Georgia, a claimant may move for summary judgment: after the expiration of 30 days from the commencement of the action or after service of a motion for summary
   judgment by the adverse party.
   a. If granted:appealable.
   b. If denied: appealable only under special circumstances.
   (1) Discretionary appeal: the order is so important to the case that an immediate review should be available. The trial court will certify the order and the losing party can apply to the court of appeals and ask them to take the case.

Question 2

Pre-Trial Order

Answer 2

1. Georgia does not require a discovery scheduling
   conference as in Fed. R. Civ. P. 26(f).
2. Georgia’s equivalent of Fed. R. Civ. P. 16 provides that upon the motion of any party, or upon its own motion, the court may direct the attorneys for the parties to appear before it for a conference to consider:
   a. The simplification of the issues;
   b. The necessity or desirability of amendments to the pleadings;
   c. The limitation of the number of expert witnesses; and
   d. Such other matters as may aid in the disposition of the action.

Question 3

What is the effect of the pre-trial order?

Answer 3

3. Effect of the Pre-Trial Order: The order, when entered, controls the subsequent course of the action, unless modified at the trial, to prevent manifest injustice.
4. After entry of the pretrial order, it is within the discretion of the court to permit or disallow the presentation of testimony
   from any expert witness whose name is not contained in the pretrial order.
   a. If the additional expert witness is permitted to testify: any opposing party will be permitted reasonable time to take
   the deposition of the additional expert witness.

Question 4

Dismissal: Voluntary

Answer 4

a. Dismissal by Notice
(1) A plaintiff may, without order of court, dismiss all claims asserted by that plaintiff against a defendant by filing a
notice of dismissal at any time before the first witness is sworn.

(2) Effects
(a) Have to start all over again.
(b) Plaintiff must pay costs.
(c) The second time this is done, it is deemed an
adjudication on the merits.

Question 5

Dismissal: Involuntary

Answer 5

a. A dismissals for lack of jurisdiction, lack of venue or failure to join a party: are not adjudications on the merits.

b. Otherwise: involuntary dismissals are adjudications on the merits and res judicata will apply.
(1) Exception: dismissal for want of prosecution.
(a) In Georgia, any action in which there is no written order entered for a period of 5 years will automatically be dismissed.
(b) If the plaintiff wants to pursue the case, they can do so within a short period of time.
1) Renewal Privilege: the privilege not to be stopped by the statute of limitations which has probably run in the meantime.
a) If the case then gets dismissed for want of
prosecution a second time, there will be no renewal privilege and the statute of limitations defense will apply.
b) Must be asserted: within 6 months of the dismissal for want of prosecution.